What Have We Become

I regularly read the blog World War II Today. It follows the events of that war on each day 75 years ago. The posting for June 7, 1943, which I read just before midnight on the 7th was entitled “Nazis Consider Sterilising Jewish Women Workforce.” If you can, put aside for a moment the particular horror of forced sterilization. It is obvious from the posting that these women were slaves. As the post states:

There was now more discrimination in how Jewish prisoners were dealt with. The extermination ‘camps’ such as Sobibor, which were designed to kill everyone who entered them, continued to operate until late in 1943. Other facilities, such as Auschwitz, were dividing prisoners into those fit to work and those to be killed immediately.

Suppose that, after the war, these individuals found their way to this country. Does anyone reasonably believe that they would be deported because they had provided “material support” for the Nazis? Well, apparently at least two members of the Executive Office for Immigration Review of the Board of Immigration Appeals believe something similar to that.

On June 6, the 74th anniversary of D-Day, in the case of Matter of A-C-M-, they found that:

The respondent afforded material support to the guerillas [sic] in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

At the hearing level:

The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds. . . . noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.

The majority found, however, that humanitarian considerations did not apply in this case due to the “material support” bar. They vacated and remanded for further proceedings to determine whether the respondent would be allowed to immigrate on the narrower ground that she faced the continuing possibility of torture.

The dissenting judge dissented only because he concluded that:

[T]he menial and incidental tasks that the respondent performed—as a slave—for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of “the same class” as the enumerated forms of assistance set forth in the statute.

Let’s go back to the case of the Nazi slave laborers. We know, for instance, that slave labor was used at Mittelwerk, German World War II factory built underground to avoid Allied bombing that produced V-2 ballistic missiles, V-1 flying bombs, and other weapons. Under even the dissent’s formulation, slave laborers at this factory would be barred from immigration to the U.S. because their tasks there were not “menial and incidental.” And, of course, post-VE Day, the Holocaust immigrants would not have faced the ongoing possibility of Nazi torture.

(H/T to Jason Nitsios, a paralegal in Towson who called my attention to the immigration ruling.)

This evening I also came across this “Landscape with the Fall of Icarus” now seen as a good early copy of Bruegel the Elder’s original. You will note the plowman who is so intent on his daily work that he doesn’t notice the travails of Icarus.

14 thoughts on “What Have We Become”

Michael Frayn wrote a learned and intelligent novel about the Breughel paining (Headlong).

OT maybe but it is worth remembering that the slave labourers in Nazi munitions factories frequently risked their lives to sabotage the war matériel they were producing. 200 slave labourers were executed for sabotage at the V2 Mittelwerk factory alone. Many more must have gone undetected. In 1939 German munitions were the best in Europe. By 1945, they were IIRC markedly worse than those of their foes. The saboteurs deserve our greatest respect.

Apparently this ruling is based on a (stupid) Circuit Court decision interpreting the relevant statute – which bars admitting anyone as a refugee who has provided material assistance to a terrorist organization.

According to the judges, there is no exception for providing assistance under threat of being killed.

Very strange. The opinion cites "Hernandez v. Sessions" as precedent for not considering duress. But H v. S. case relates to holding immigrants indefinitely who do not have the money to post bond. A search of the opinion does not find the words "duress" or "involuntarily".

Here's the quote from Hernandez: The principal question presented by this petition is whether the agency’s determination on remand that the material support bar contains no such exception is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron deference is warranted and join several other circuits in holding that the material support bar does not except aliens who acted under duress. We also reject the petitioner’s argument that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently‐available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security. See 8 U.S.C. § 1182(d)(3)(B)(i). Accordingly, we deny the petition.

I don't think that we have ever been as good as you are stating. There was no port of entry for the MS St. Louis (of Voyage of the Damned fame). Also, although everything you state is true, it is not the whole truth. In this same decision, there was a remand for another potential reason to allow for leave to stay plus there is an appeal to the Circuit Court. if that fails. Finally, although most unlikely, there is the possibility of a waiver. Or, lastly, Congress could change the wording of the statute to clarify the meaning of "material" support (which I agree with th dissent is misread in this decision) and/or to explicitly add a duress exception.